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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.423 of 2009
Chhotu @ Asif Istraeel Shaikh .......Appellant
Vs.
The State of Maharashtra ........Respondent
Dr. Yug Mohit Chaudhari i/b. Ms. Tasneem E. Kanthawala for
the appellant.
Mrs.A.S.Pai, APP for the State.
CORAM: B. H. MARLAPALLE &
A.M. THIPSAY, JJ.
DATED: 22nd March, 2011
ORAL JUDGMENT (PER B.H. MARLAPALLE, J)
The appellant was tried as accused No.3 in Sessions
Case No.363 of 2005 and as per the judgment and order dated
10th August, 2006 the appellant along with accused No.4-Arjul
Nepal Gazi and accused No.5-Lambu @ Aminuru Ijul Gazi has
been convicted and sentenced for the offence punishable under
Section 302 read with Section 34 of I.P.C. and the said order of
conviction and sentence is under challenge in this appeal.
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2. Before the trial Court the appellant’s age was shown as
19 years and from the record it is clear that he is not treated to
be a juvenile as defined under the Juvenile Justice (Care and
Protection of Children) Act, 2000 (for short “the Juvenile
Justice Act, 2000). The appeal came to be admitted on 6th April,
2009 by this Court and it appears that during the pendency of
this appeal he filed Criminal Miscellaneous Application No.
2156 of 2009 in Sessions Case No.360 of 2005 before the
learned Additional Sessions Judge at Thane. In the application
it was stated that the appellant was never admitted to any
school and did not possess any document showing his date of
birth. His father Mohamed Istraeel was examined along with
himself and in the oral depositions it was claimed that the
applicant was born in the year 1989.
3. By following the requirements of Rule 12(3) (b) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007
(for short Rules of 2007) the trial Court ordered ossification
test to be carried out for determination of the appellant’s age
and he was sent to the Civil Hospital at Thane. His ossification
test was conducted on 10th April, 2010 and on the same day
the Medical Officer gave his opinion that the age of the
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appellant was between 20 to 25 years. The Court accepted the
said opinion and having regard to the scheme of Rule 12(3)(b)
of the Rules of 2007 it held by its order dated 21st January,
2011 that on the date of the offence i.e. on 3rd June, 2005 the
appellant was below the age of 18 years and, therefore, a
juvenile in conflict with law. However, as the instant appeal
has been pending in this Court the learned Additional Sessions
Judge could not grant any further relief to the appellant and has
forwarded his findings under the letter dated 21st January, 2011
to the Registrar (Judicial) of this Court.
4. Dr. Chaudhari the learned Counsel appearing for the
appellant urged before us that the findings of the Additional
Sessions Judge recorded in the order dated 21st January, 2011
in Criminal Misc. Application No.215 of 2009 do not suffer
from any error and are, therefore, required to be accepted.
5. Mrs. Pai, the learned A.P.P., on the other hand submitted
that under Rule 12(3)(b) of the Rules of 2007 the ossification
test was required to be undertaken by a Medical Board duly
constituted by the State Government and not by any Medical
Officer in the Civil Hospital. As per Mrs. Pai, the medical
opinion recorded in favour of the appellant and accepted by the
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trial Court is thus not in keeping with the requirements of Rule
12(3)(b) of the Rules of 2007 and, therefore, unless the age
determination test is conducted by the Medical Board the case
of the appellant cannot be considered for his claim of being a
juvenile in conflict with law.
6. In rebuttal Dr. Chaudhari has invited our attention to the
Rules amended by the State of Maharashtra by its notification
dated 11th January, 2011 published in the Government Gazette
dated 13th January, 2011. The Government of Maharashtra
published the Maharashtra Juvenile Justice (Care and
Protection of Children) Amendment Rules, 2011 thereby
amending the Maharashtra Juvenile Justice (Care and
Protection of Children) Rules, 2002 and referred to in the
notification as Principal Rules. Rule 8G of the amended Rules
of 2011 deals with age determination and it would be
appropriate to reproduce the said Rule as under:-
“8G. Age determination.– (1) In every case concerning
a juvenile or child the Board or the Committee or any
court shall determine the age of such juvenile or child
within a period of thirty days from,–
(i) the date of first production before the Board or
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Committee, or
(ii) the date of filing of application before any court
claiming that an accused or a person convicted of an
offence is a juvenile, or
(iii) the date of raising the issue of age before any court
that is seized of any proceeding relating to a child in
need of care and protection, or
(iv) the date when any court initiates suo-motto action
for determination of age.
(2) While conducting an inquiry for determination of
age, the Board or the Committee or the court, shall seek
proof of age by obtaining any of the following
documents:-
(i) a birth certificate issued by a local self Government.
(ii) a certificate issued by school reflecting the date of
birth as recorded in the school register.
(3) In the event of doubting the authenticity of the above
documents, the Board or the Committee or any court
shall call upon the Special Juvenile Police Unit or
Juvenile Welfare Officer of concerned police station to
enquire the authenticity of any of the documents
submitted as proof of age.
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(4) on the basis of above documents, the Board or
Committee or any court shall record a finding of age
which shall be conclusive proof of age regarding that
juvenile or child.
(5) If the documents mentioned in sub-rule (2) are not
available or the document submitted is not found to be
authentic, the age of the person shall be determine by
seeking the medical opinion of hospitals authorized by
the Government. On the basis of the medical opinion,
the Boards or the Committee or any Court shall record a
finding of age, which shall be conclusive proof of age
cannot be done, the Board or the Committee or any court
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within
the margin of one year.
(6) In the event of doubting the bona-fides and integrity
of the medical opinion, the Board or the Committee or
any court may direct a second medical examination to
ascertain the age of the juvenile or child. In the event of
conflict between the two medical opinions, the Board or
Committee or the court may examine the registered
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medical practitioners to determine the age of the juvenile
or child.
(7) If necessary, the Board or the Committee or any court
conducting an age determination inquiry may orally
examine the parent or guardian or school authority or
representative of hospital authorized by the Government.
(8) On completion of the age determination inquiry, the
Board or the Committee or any court shall record a
finding with regards to age by passing a written order
recording the age and declaring whether the person in
respect of whom the age inquiry was conducted is a
juvenile or child for the purpose of the Act, and a copy
of such order shall be furnished to the juvenile or child
or person concerned.
(9) The Board or the Committee shall not conduct an age
determination inquiry if the juvenile or child has been
produced before the Board or the Committee under the
orders of any court which has conducted the age
determination inquiry and found the concerned person to
be a juvenile or child.”
7. We are concerned with Rule 8G (5) of the amended
Rules 2011 of the Government of Maharashtra. As per Dr.
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Chaudhari even though these Rules have come into force from
the date of their publication i.e. 13th January, 2011 the order
passed by the trial Court cannot be faulted with and even if the
appellant was required to be sent to the Medical Board, the
learned A.P.P., who appeared before the trial Court appears to
have accepted the ossification test conducted by the Civil
Hospital at Thane. However, as of now in the State of
Maharashtra the amended Rules of 2011 would prevail and as
per Rule 8G (5) of the said Rules a medical opinion of the
hospital authorised by the Government regarding the
determination of age has to be accepted and it is not necessary
that in every case the age determination has to be done by the
Medical Board.
8. We, therefore, do not find any case made out to doubt or
discard the opinion of the Medical Officer, Civil Hospital,
Thane, determining the age of the appellant as between 20 to
25 years as on 10th April, 2010.
9. Now coming to the determination of being a juvenile,
the trial Court has considered the date of offence i.e. on 3rd
June, 2005 and if the age of the appellant was accepted to be
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20 years (lower side) as on the date of the offence, his age
would be 15 years and 2 months. In the alternative, if the age
of 20 and 25 years is taken into consideration, the appellant’s
age as on 10th April, 2010 would be 22 ½ years ( by average
method) and thus as on the date of the offence his age would
be 17 years and 8 months. By any of these alternative methods
the appellant would be a juvenile as on 3rd June, 2005 i.e. less
than 18 years of age. Under Rule 12(3)(b) of the Rules of 2007
as framed by the Government of India as well as under Rule
8G(5) of the Rules amended in 2011 by the Government of
Maharashtra the age of the juvenile could be terminated by
giving margin of one year on the lower side and we have noted
that even without giving such a margin the trial Court has
recorded findings on both counts. We are, therefore, satisfied
that the findings of the trial Court do not suffer from any
infirmity and the opinion about the age of the appellant being
less than 18 years as on 3rd June, 2005 is required to be
accepted. Dr. Chaudhari in this regard has rightly relied upon
the decision of the Supreme Court in the case of Babban Rai
& Anr. vs. State of Bihar, 2008 Cri. L.J. 1038.
10. Once we uphold the finding that the appellant is a
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juvenile in conflict with law as defined under Section 2(l) of
the Juvenile Justice Act, 2000 the order of sentence has to be
set aside and so far as the order of conviction is concerned, Dr.
Chaudhari seeks leave to withdraw the Appeal. The appellant
has by now crossed the age of 18 years and, therefore, there is
no question of his being directed to be produced before the
Juvenile Board to undergo sentence and even otherwise, by
now he has actually undergone the sentence of 5 years.
11. In the result, the order of sentence of life imprisonment
awarded to the appellant is set aside as the appellant was a
juvenile on the date of the incident i.e. 3rd June, 2005 and the
appeal is partly allowed and for the challenge to the order of
conviction the appeal is disposed as withdrawn. We direct that
the appellant be released forthwith unless required to be
detained in any other criminal case.
(A.M. THIPSAY, J.) (B. H. MARLAPALLE, J.)
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